State v. Kenney

• Decision Date: 13 April 1891
• Citation: 26 P. 388,10 Mont. 496
• Parties: STATE ex rel. BLACKFORD v. KENNEY, Auditor.
• Court: Montana Supreme Court

26 P. 388

10 Mont. 496

STATE ex rel. BLACKFORD v. KENNEY, Auditor.

Supreme Court of Montana

April 13, 1891

Application for mandamus.

Const. Mont. art. 12, § 10, provides that no money shall be drawn from the state treasury except upon specific appropriations made by law

Wm. Blackford and Steve Carpenter, for relator.

Henri J. Haskell, Atty. Gen., for respondent.

BLAKE, C.J.

The relator has applied to this court for a peremptory writ of mandate to be directed to the state auditor, and commanding him to draw a warrant upon the state treasurer in favor of the relator for the sum of $150. It is shown by the affidavit and admitted by the respondent, that the relator was employed May 31, 1890, as the clerk of the code commission of the state, and has acted as such since that time; that he has not received his salary for the month of March, 1891; and that, upon a demand therefore, the respondent refuses to draw his warrant in any sum for the relator. The act under which the code commission was appointed contains this provision: "The said commissioners *** are empowered and authorized to employ one competent clerk, who shall receive for his *** services $150 per month. *** The salary of the clerk of such commission shall be paid monthly by the auditor upon vouchers to be approved by the chairman of the commission." St. 16th Sess. p. 117, §. No appropriation has been made for the payment of his salary for the period above mentioned, and the claim of the relator is founded upon the act supra. The case of State v Kenney, 9 Mont. 389, 24 P. 96, is applicable to these facts, and the application for a peremptory writ of mandate must be denied.

HARWOOD and DE WITT, JJ., concur.